HAWAII JUDGE ENDS GAY-MARRIAGE BAN

By CAREY GOLDBERG

Published: December 4, 1996

A Circuit Court judge in Honolulu ruled yesterday that lawyers for the state had failed to show any compelling reason for the existing ban on gay and lesbian unions. Calling the ban unconstitutional, the judge ordered the state to stop denying marriage licenses to same-sex couples.

The decision edged Hawaii a step closer to becoming the only state to recognize gay marriage; an appeal to the state Supreme Court by the ban's supporters is expected to take most of next year.

In 1993, the state Supreme Court ruled that the ban appeared unconstitutional and ordered the state to show a ''compelling state interest'' justifying it. Should the court rule the same way this time, the legal battle in Hawaii would be over and same-sex marriage licenses would be granted.

But on the United States mainland the legal fight will only be beginning as other states and the Federal Government wrestle with whether they must recognize same-sex marriages performed in Hawaii.

The prospect of would-be gay spouses flocking to Hawaii to wed has prompted such widespread opposition that Congress passed the Defense of Marriage Act earlier this year declaring that states were not obliged to recognize single-sex marriages performed elsewhere. Though his spokesman denounced the measure as ''gay-baiting,'' President Clinton signed the election-season bill, which also withheld Federal tax, pension, health and other benefits from gay spouses.

Proponents of gay marriage predict major disputes in Federal courts over whether states are bound by the United States Constitution's ''full faith and credit'' clause to recognize same-sex marriages performed elsewhere. They foresee a court-by-court battle that could take years, particularly in the 16 states that have passed their own versions of the Federal marriage statute. Twenty states have defeated such bills.

Today's ruling, by Judge Kevin S. C. Chang, cited substantial expert testimony that gay and lesbian couples can be good parents. Judge Chang rejected the state's argument that it was in the best interest of children to bar same-sex marriages.

The decision brought cries of victory from advocates of gay marriage and cries of foul from opponents.

''This decision marks the beginning of the end of sex discrimination in marriage just as we brought an end to race discrimination in marriage a generation ago,'' said Evan Wolfson, the project director at the Lambda Legal Defense and Education Fund, the gay organization that worked on the case with Dan Foley, a Honolulu lawyer, and the American Civil Liberties Union. ''Let these couples wed!''

But Robert H. Knight, director of cultural studies at the Family Research Council in Washington, denounced the ruling as a denial of ''not only the wisdom of generations but the law of nature and nature's God.'' And the Rev. Lou Sheldon, chairman of the Traditional Values Coalition in Anaheim, Calif., called the ruling ''judicial tyranny.''

The ruling is not expected to take immediate effect because lawyers for the state quickly sought a stay pending their Supreme Court appeal. Lambda officials advised would-be gay spouses against hopping on planes for Waikiki.

Judge Chang's decision ended the latest chapter in a legal case that began in 1990 when the Hawaii Department of Health denied marriage licenses to three same-sex couples in Honolulu. The couples sued in 1991. Two years later, the Hawaii Supreme Court found the state's ban on same-sex unions to be unconstitutional and required state lawyers to show a ''compelling state interest'' for its continued existence.

At a nine-day nonjury trial this September, lawyers for the state argued before Judge Chang that children were best raised by two heterosexual parents. Their four expert witnesses included sociologists who testified that it was best for children to live in a traditional family.

When pressed, however, the state's witnesses acknowledged that it would help the children of same-sex couples if their parents could wed. They agreed, too, that gay couples could be as competent at parenting as heterosexual ones.

The gay couples' lawyers produced their own experts who testified that studies had found that what was most important in child rearing was the quality of parenting, not the sexual orientation of the parents.

Rick Eichor, the deputy Attorney General who handled the case, said Judge Chang seemed to have based his decision on a lack of evidence that gay parents are bad parents, whereas the state's argument had focused on the theory that gay parents were not ideal and that ''you want to give children the best possible odds.''

''If I had known the judge wanted us to engage in gay-bashing,'' Mr. Eichor said, ''we would have done the case differently. But we didn't feel that was necessary, and I still don't.''

Mr. Foley, the plaintiffs' lawyer, said that the Federal court system had no jurisdiction over Hawaii in the matter of gay marriage and that if the Hawaii Supreme Court ruled in favor of such marriage, no further appeal would be possible.

For now, the three couples whose desire to marry set off the legal battle are still preparing -- slowly and a bit skeptically -- for their weddings.

One couple, Joseph Melillo and Patrick Lagon, who have lived together for 19 years, have recently become ministers in the Universal Life Church. Thus, Mr. Melillo said, they might, in a pinch, be able to officiate at their own marriage.

Another of the couples, Ninia Baehr and Genora Dancel, who now live in Baltimore, have said they plan a small private ceremony on the island of Maui. The third couple, Antoinette Pregil and Tammy Rodrigues, have recently begun speaking publicly now that they deem their 19-year-old daughter old enough to stand the attendant publicity. They also plan a private wedding.

Ms. Baehr and Ms. Dancel greeted today's ruling with tears of happiness at Lambda headquarters in Manhattan. ''Our love made it possible for me and Genora to get through this long legal fight,'' Ms. Baehr said. ''I'm looking forward to our love getting us to a wedding on a mountain slope in Maui.''

The couple noted, however, that they did not plan to rush their union and hold a ceremony in the small gap between today's ruling and the stay.

''We don't even know what we're going to wear yet,'' Ms. Baehr said.

Photo: Ninia Baehr, left, and Genora Dancel are one of the three couples who won a court battle in Hawaii yesterday over same-sex marriage. (Associated Press)(pg. A26)